Unwind with a cup of coffee (or tea) over our five and a half fun facts about the Information and Privacy Commission of New South Wales.
#1: Information Commissioner can give non-binding recommendations to itself
As you may know, pursuant to the Government Information (Public Access) Act 2009 (NSW) you can apply to various agencies for government information. One of these agencies is the NSW Information and Privacy Commission.
Yes, some of the NSW IPC’s info is excluded information by virtue of clause 2 of schedule 2 of the GIPA Act. This means that you are actually incapable of making a valid application for this kind of info, section 43 of the GIPA Act says. From this follows that you cannot acquire an enforceable right to be provided with the excluded information. Still, however, the NSW IPC will hold some info that is not excluded information and that you may happen to covet.
This other info, if you are lucky, will be released to you within 20 working days after the date of your application. If you have no special luck, it will not.
Do I hear you asking: “and what now?”
Well, if you do not get what you want at the agency level, you can seek an internal review, NCAT review or an IPC review.
Yes.
This means what you think it means.
You can first get the IPC decision at the agency level. You can then get internal review from a more senior officer of IPC. And then the crowning: you can also apply for the IPC review “proper” where the IPC can once again review its own decisions and make some non-binding recommendations to itself.
All of that, of course, completely independently, the IPC’s website reports.
#2: Crimes by CABINET off limits
Some can derive a significant consolation from the fact that they can complain about the breaches of the GIPA Act to the NSW IPC. After all the Information Commissioner has powers to enter and inspect any premises of an agency, and to inspect any record or thing on the agency’s premises.
But as potent as the Information Commissioner may seem, a little digging around the legislation results in the unsettling discovery. Namely, Information Commissioner was denied any power to require a person to produce a record or a thing if this would result in disclosure of Cabinet information. So even if that record or thing were a proof of a breach of the GIPA Act penalty provision by the Cabinet minister, they could not be released to the Information Commissioner.
Don’t believe it? Look up section 30 of Government Information (Information Commissioner) Act 2009 (NSW) for yourself.
Stunned?
FORCIN is stunned as well.
After all, a breach is a breach. And, anyway, shouldn’t the law treat us all the same, regardless of our station in life? Whatever the NSW Parliament was thinking…
#3: IPC cannot PROSECUTE OFFENCES
So you flipped through the GIPA Act and you feel assured that it must be a serious piece of legislation? I mean, seriously, who wouldn’t? After all it even creates a bunch of offences and gives some investigative powers to the Information Commissioner.
But wait.
Does the Information Commissioner actually have powers to bring the proceedings for a GIPA Act offence? Surely it should be only natural for the Information Commissioner to be able to take action? Go after those who committed an offence against the right to information?
It turns out that this course of action did not seem natural to the NSW Parliament.
Instead, the NSW Parliament thought it right to specifically single out the NSW Information Commissioner not to give it the function to bring proceedings for an offence under an “Information Act”, which includes the GIPA Act, s 28(6) of the Government Information (Information Commissioner) Act 2009 (NSW) informs. So sorry for the disappointment everyone. But no shots will be fired from that particular watchtower of virtue.
#4: If IPC does nothing, it is deemed to have made no recommendations
This is a result of section 92A of the GIPA Act that came into force in 2018.
If the Information Commissioner does nothing for 40 working days from the date of receipt of all information the Information Commissioner considers necessary to complete review, the Information Commissioner is taken to have made no recommendations. When this happens, the clock will start running for the GIPA applicants again. They will now have the standard 20 working days to apply for the NCAT review. Hence, when you apply to the Information and Privacy Commission for their review, do not get complacent – keep your finger on the pulse. Or, rather, keep it on the calendar.
#5 & #5.5: IPC can appear in your proceedings – And then it can disappear
Occasionally the stars align in a special configuration and the Information Commissioner appears in the proceedings as amicus curiae.
What does amicus curiae mean?
Amicus curiae is a Latin expression that stands for “a friend of the court”. It indicates that the Information Commissioner will not be making submissions to help you. And it should not be making submissions to help the agency. IPC will appear to help the court, ie in this case the NCAT, on the points of law. This also means that the Information Commissioner will not make submission on the “procedural” issues.
While the singularity of the IPC appearance might be exhilarating for some, it should be treated with caution. So if the IPC appears in your proceedings, do not get self-complacent. Pull your weight exactly as if the IPC were not there. After all, just it appeared, IPC may decide to simply disappear from your proceedings. “The antiquity got it right after all”, the Deep Throat says, “beware of Greeks bearing the gifts”.
Together we can more! Contact us with your story of the IPC review.
Wanna know the NSW Government’s side of the story? Read its official statements on the NSW IPC’s website.